KANNAPPA CHETTIAR Vs. KANDASWAMI PILLAI

JUDGEMENT

(1.) This is judgment-debtor's appeal against an order by the learned District Judge of North Arcot allowing the execution of the decree in O. S. No. 292 of 1930 to proceed. To appreciate the point that has been raised by the learned counsel for the appellant, it is necessary to state a few of the facts in the protracted history of this litigation. The respondent obtained a money decree in O. S. No. 292 of 1930 on the file of the 'Court of the District Munsif, Tiruvamamalai, on 10-4-1930. Pending the suit, the decree-holder had obtained an attachment before judgment which was effected on 9-4-1930. But even before this date, on 4-4-1930, the judgment-debtor had filed I. P. No. 20 of 1930' for his own adjudication and this was ordered on 11-9-1930. On 11-4-1930, that is, after the institution of the insolvency proceedings, but before the adjudication, the decree-holder filed E. P. No. 391 of 1930 for executing the decree which bet had obtained. However, on the application of the judgment-debtor, execution proceedings were stayed under Section 29, Provincial Insolvency Act by order dated 18-8-1931. There were several intermediate proceedings in relation to the attached properties to which it is unnecessary to refer at this stage. Suffice it to say that the attachment as well as the right of the judgment-debtor to the properties attached were the subject-matter of these several proceedings which continued for a considerable time. On 26-1-1942, the decree-holder applied in I. A. No. 103 of 1942 to the insolvency Court for permission to execute the decree and this permission was accorded on 10-2-1942 and in pursuance of this permission, lie filed execution applications which, however, were dismissed on technical grounds, but were again restored to file and the present execution application was filed on 17-3-1944.

(2.) One ground urged against this execution application is that it is barred by limitation. A contention was raised that as the application for execution was filed beyond 12 years from the date of the decree, this was barred under S. 48, C. P. C. for the reason that the limitation imposed by this provision operated as an absolute bar and that no application for execution, notwithstanding that the execution had been stayed, could be filed after the expiry of 12 years from the date of the decree. But this contention is no longer tenable since a Full Bench this Court has held that Section 48, C. P. C, is controlled and is subject to the exemption granted by Section 15, Limitation" Act. This point having been disposed of, the judgment- debtor contended that the decree-holder could have moved the insolvency Court for obtaining the order of the stay passed under Section 29 to be modified or vacated, that the bar imposed by the section is not absolute and that consequently Section 15, Limitation Act could not avail to give an extended period of limitation for the purpose of pursuing the proceedings in execution. The learned District Munsif upheld this contention of the judgment-debtor and dismissed the execution application. The decree-holder thereupon preferred an appeal to the District Court and the learned District Judge allowed the appeal and permitted the execution to proceed. It is against this order of the learned District Judge that this appeal had been preferred.

(3.) Section 15, Limitation Act as now amended reads as follows: